RATI LAL NANJI Vs. UTTAM LAL SARCAR

JUDGEMENT

(1.) This is an appeal by the plaintiffs from a decree of the Subordinate Judge of Asansol dated 23 July 1930 by which their suit claiming several reliefs was dismissed. The reliefs claimed in the plaint are: (1) that certain coal lands mentioned in Schedule (1) to the plaint be declared to be the joint and partnership properties of plaintiff 1 and defendant 2 constituting the firm, of Khengarji Amritlal & Co., (plaintiff 2); (2) that a decree in money suit No.207 and the subsequent proceeding thereof are not binding on the plaintiffs or either of them; (3) that the sale in execution of the said decree is void or even if it be held to be valid is not binding on plaintiff 1. and his share has not been affected thereby, and (4) that it be declared that plaintiff 1 has a right to redeem the schedule properties and the decree for redemption may be passed after taking an account of what would be due to the principal defendant.

(2.) The case stated in the plaint is that the principle defendant Uttamlal Sarkar and this cosharer are the joint owners of mauza Jote Dhamo and that the onehalf share of the said undivided mauza belongs to the said defendant and the remaining half share to his cosharers that in the said mauza there is a plot of land measuring 527 bighas the underground coal mining, rights thereof was demised to one, Mr. James Kirkwood by two leases one of which was executed by the principal defendants on 28 January 1920, in respect of his undivided half share and the other by his cosharers Hem Chandra, Sarkar and others on the same date and at the same time in respect of the remaining eight annas; that on 17 April 1920, Mr. Kirkwood demised on certain terms his rights in the said plot of 627 bighas acquired under the two leases to the proforma defendant for the firm of Khengarji Amritlal & Co. the partners whereof were the proforma defendants Amritlal Ojha and the late Nanji Khengarji, the father of plaintiff 1 that on 20 June 1921, Mr. Kirkwood conveyed to the firm of Khengarji Amritlal & Co., the right which he had under the two leases, viz., his right to receive royalty from the said firm under the, sub-lease of 17 April 1920; that, the said firm became the tenant under the principal defendant and his cosharers in respect of the premises demised by the leases of 28 January 1920; that plaintiff's father had 7-annas share in the colliery; that plaintiff 1's father died on 3 March 1928; that on the death of his father the plaintiff became entitled to his entire share in the partnership business regarding the jote Dhamo Colliery; that some time in August 1928, plaintiff 1 came to know that the colliery has been sold in execution of a decree obtained by defendant 1 for the royalty of the said colliery; that as a result of his inquiries it transpired that defendant 1 had instituted a suit (Misc. No. 207 of 1924) against defendant 2 for certain amount due to him in respect of royalty of the colliery and had obtained a charge decree on 21 April 1923, which was eventually confirmed by the High Court on 18 January 1928; that defendant 1 proceeded to sell some of the properties covered by the said charge decree and that he himself had purchased the same at a grossly inadequate price of Rs. 700, the real price being Rs. 1,25,000; that in the said suit neither plaintiff's father nor the plaintiff was made a party; that the plaintiff believes that defendant 1 followed an illegal and irregular procedure in bringing about the sale; that the properties being partnership properties could not be sold by defendant 1 in execution of a decree against defendant 2 alone and the partnership properties have not in fact been sold. On this state of pleadings the plaintiffs asked for the reliefs which have already been stated. There were several defences to the suit but it is only necessary to mention those defences which bear on the points raised by the present appeal. They are: (1) that defendant 2 was the sole owner and proprietor of the firm of Khengarji Amritalal & Co.; (2) that the defendant 1 executed, the decree in Suit No. 207 of 1924 quite legally and purchased the properties at a fair price; (3) that the plaintiff allowed himself to be represented by defendant 2 in all transactions regarding the disputed colliery with the lessors and is bound by the decree in money Suit No. 207 of 1924, on the principal of estoppel, acquiescence and waiver. On these pleadings several issues were framed.

(3.) Issue 2 is to the following effect: Is plaintiff 1, a partner in the firm of Khengarji Amritalal & Co. (plaintiff 2)? The finding of the Subordinate Judge on this issue is in favour of the plaintiff-appellant. He has held that Nanji Khengarji who was a partner in the firm of Nanji is the father of plaintiff 1. The finding of the Subordinate Judge on this part of the case has been challenged by the respondent by way of cross-objection and we have heard the respondent on this point but nothing that we have heard from the respondent induces us to take a view different from that of the Subordinate Judge on this point. It is true that no deed of partnership was produced in this case; besides it appears that the conveyance (Ex. 4) executed by Amritalal Ojha in favour of the firm shows that Amritalal Ojha was not the sole partner, for in that document Amritalal describes himself as a member of the firm of Khengarji Amritalal Co. This document is dated 22 January, 1921 (see p. 17, part 2). The subsequent conveyance by Mr. Kirkwood dated 20 June 1921, is in favour of the firm Khengarji Amritalal & Co.: see Ex. 5, p. 20, part 2. It also appears that in Ex. 9 series a published report of the Government of the list of coal mines worked under the Indian Mines Act, Nanji father of plaintiff 1, is also shown as the partner of the firm and these reports extend from 1920 to 1927: see pp. 9, 10 and 25, part 2. We have no doubt on this documentary evidence that the plaintiff's father was the partner of the firm. The respondent in support of his cross-objection has seriously commented on the fact that Amritalal Ojha has not gone into the witness-box and that his agent Maniklal who was present in Court has not also been examined and that when material evidence is withheld an inference unfavourable to the patty withholding the evidence should be drawn. Chunilal. however has boon examined on behalf of the plaintiff and he proves that Nanji was the proprietor of the colliery and that he was appointed by Nanji some ten years before he was deposing to look after the work of the colliery. We are therefore of opinion that the Subordinate Judge has rightly decided the issue in favour of the plaintiff. This disposes of the cross-objection.